Discriminations

Tuesday, August 06, 2002

POP! (Piling On the Post - I apologize for piling on, but even after InstaPundit and Volokh there is still something to say about yesterday's unusually dumb editorial in which the Washington Post took aim at Ashcroft but wound up shooting itself in the foot.

The Post blamed Ashcroft personally for propounding a view -- that the Second Amendment protects an individual, not a state, right -- that is in fact so widely shared among even liberal law professors that it has come to be known as the "Standard Model." But never mind. There's nothing new or noteworthy about using the Attorney General as a convenient villain and vilifying him over this or that. What was striking about the edit is that the Post could not comprehend Ashcroft's willingness to enforce a law he opposes.

Mr. Ashcroft has insisted that he will defend this country's gun laws, even as he has contended that the Second Amendment to the Constitution creates an individual right to own a gun -- subject only to reasonable regulation to keep guns from criminals

The Justice Department has, so far, gotten around this problem by playing legal games. The D.C. Court of Appeals, it has argued in several cases, has held that there is no individual right to own a gun. And while the attorney general may disagree with this holding, it is binding law in Washington; hence, gun prosecutions here may proceed. But it is hard to see why the government should be locking people up for conduct it has plainly said -- before the U.S. Supreme Court, no less -- is constitutionally protected.

Our point is simply that the government cannot both embrace an individual rights view of the Second Amendment and prosecute people for wielding guns.

The Post's editors (there are editors there, aren't there?) seem to have forgotten that Ashcroft's willingness to enforce laws with which he disagrees was at the very heart of the battle over his confirmation as Attorney General. Democrats feared he wouldn't, and all but 8 of them voted against him. He swore that he would. And now that he has -- and not for the first time (defending racial preferences in Adarand also comes to mind) -- the Post can only regard his behavior as "playing legal games."

Given the editors' obviously short memories, it would have been helpful for them to consult their own paper's back issues. If they had done so they would have found the following description of the opening of nominee Ashcroft's confirmation hearing before the Senate Judiciary Committee:

"I understand that being attorney general means enforcing laws as they are written, not enforcing my own personal preference," the former senator said in his opening statement to colleagues on the committee where he served until a few weeks ago. "It means advancing the national interest, not advocating my personal interest."

"When I swear to uphold the law," Ashcroft declared later, raising his right hand, "I will keep my oath, so help me God. . . ."

". . . I well understand that the role of the attorney general is to enforce the law as it is, not as I would have it. . . . I will follow the law in this area [abortion] and in all other areas."

Imagine that. Someone in Washington actually doing what he said he would do. You might have thought the Post would find that newsworthy.

Sunday, August 04, 2002

News from Winston Salem - Tony Hooker sends word of two interesting stories from Winston Salem. In one, there was a poignant class reunion of what would have been the Class of 1972 of Atkins High School. "Would have been," because Atkins, a black high school, was closed abruptly two weeks before school opened in 1971 as part of Winston Salem's integration plan, and what would have been the Atkins senior class was distributed to other schools across the city. You don't have to lament the passing of segregation to see that integration, or at least the transition to integration, especially when done poorly and with little apparent regard for the people treated as integratees, also had some costs.

The other article discusses a police shooting that did not lead to a racial conflict, at least in part because both the police officer and his 14 year old victim were black. The shooting appears to have been accidental, but, the columnist observes, "seeing beyond race is always a tricky matter."

Weaver [the officer involved in the shooting] is also named in a lawsuit filed against the city last June by a white former officer, Charlotte Disher, who alleges that the police department holds white officers to a higher standard in cases alleging excessive use of force. She was fired after she used pepper spray to defend herself, her lawsuit says. Weaver was Disher's boss.

Weaver is on administrative leave. "Basically," said a local County Commissioner, "it's hard to believe a black officer would have deliberately shot a youth."

Does this imply that it's easier for him to believe a white officer would have? I don't know.

A Smear By Any Other Name Is ... - You may or may not be able to tell a person's race from his or her speech (see "You Talkin' To Me?" two posts below), but you can certainly tell the profession ... if it's politics.

Responding to the Senate Ethics (?) Committee's severe admonishment of Sen. Robert Torricelli, Atlantic County (N.J.) Democratic chairman Chuck Chiarello said the Democrats would just have to work harder. To defend Torricelli, or remind voters that at least he's on their side, etc.? No, according to an article in the Philadelphia Inquirer, to dig up dirt on Douglas Forrester, his Republican opponent.

And Chiarello suggested that Democrats would continue digging into Forrester's business practices: "Everybody has some baggage, so there's a lot of counter-integrity work that's going to happen over the next couple of months."

Uncle T[h]om[as]? - The Washington Post Magazine has a fascinating if disturbing article about the continuing bitter rejection of Justice Clarence Thomas in the black community.

The entire article is well worth reading, but I found the following vignettes the most revealing:

"I hope his wife feeds him lots of eggs and butter and he dies early, like many black men do, of heart disease," Julianne Malveaux, the liberal commentator, once cracked on a talk show.

Emerge, a since-departed African American-oriented newsmagazine, twice parodied Thomas on its cover--once wearing an Aunt Jemima-style headscarf and another time as a lawn jockey. The editions were among the magazine's bestsellers. For the past six years, Ebony magazine has not listed Thomas among its 100 most influential African Americans.

Having Thomas debate affirmative action would be no different from "inviting Hitler to come speak on the rights of Jews," said Eric Ferrer, one of the Hawaii [ACLU's] three black board members. The ACLU initially decided not to invite Thomas but later reversed itself. Ferrer and another black board member resigned.

This spring, five black law professors boycotted his visit to the University of North Carolina. Though the professors had not protested visits by Justices Scalia and Sandra Day O'Connor in preceding years, they noted that Thomas was more than just a jurist with whom they disagreed. In a nation "in which African Americans are disproportionately poor, undereducated, imprisoned and politically compromised," the professors wrote in explaining their position, "identity--racial identity--very clearly matters...."

How ironic that the most vocal advocates of "diversity" are the most determined to stamp out any traces of actual diversity inside the black community. On second thought, this is not so ironic after all, for the very theory of "diversity" requires individual members of minority groups to be fungible.

Saturday, August 03, 2002

You Talkin' to Me? - The July/August issue of Legal Affairs, the new magazine from the Yale Law School, has an interesting article on "linguistic profiling," the ability to identify speakers' race by their speech and thus to engage in long distance (or at least out of sight) discrimination. The theory will be tested in an upcoming housing discrimination case in San Francisco that, according to the author, "offers a potential breakthrough in discrimination law."

Since the article indicates that listeners are able to identify black "dialect" when it is street language rather than "professional English" spoken by a black, it would be interesting to see whether landlords discriminate more against callers they identify as black than against, say, hillbillies or rednecks. Could an accused landlord offer in defense the excuse that "I run a high class joint and won't rent to ungrammatical riff raff of whatever pigmentary persuasion"? But wait, that might exclude editors at the New York Times! (See my comment on them here).

Friday, August 02, 2002

Whither the Democrats, or Maybe Whether... - In discussing the close Michigan Democratic primary race between old bull John Dingell and spring chicken Lynn Rivers, senior Washington Post political correspondent David Broder writes:

It has become not just a personal rivalry of genders and generations but also a test of strength between two forces competing for control of the national Democratic Party. Dingell represents the traditional blue-collar, union-oriented, largely male-dominated and culturally conservative coalition forged in his father's New Deal era. Rivers is backed by the academic, cause-oriented, environmental, anti-gun, abortion rights and largely female groups that have come to play a dominant role in the party.

Insofar as Broder is right, and being a Democrat means indentifying with one of these two camps, there must be many wannabe Democrats looking for other alternatives.

Disparate Impact, Redux & (With Luck) Finis - I think Garrett Moritz has written the last chapter, at least for now, of our ongoing discussion of disparate impact.

I would like to thank him, again, for his generous comments, and urge you take a look at his post. Although I might not have summarized the nub of our differences the same way he has, his summary is both fair and succinct. These are difficult issues; reasonable people can disagree; and I would like to think there is enough substance in our backs and forths on the subject to assist others in clarifying their own thoughts on the matter.

Raines of Error - The New York Times has come under withering criticism from the blogosphere of late, usually for some variation on abandoning its old gray lady image of objectivity in favor of arguing itself blue (as in the Gore counties on the famous 2000 electoral map) in the face on (and in) issue after issue. Recent examples of the criticism can be found on InstaPundit ("Why, exactly, does the New York Times feel obliged to distort its reporting...."), Kausfiles ("Stop Me Before I Bash the NYT Again"), and Andrew Sullivan (most days).

Now there's another problem. Perhaps this new turn toward advocacy journalism in the news pages has gotten the editors all discombobulated, but, whatever the reason, they seem to have lost their ability to produce agreement ... between subjects and verbs.

In an editorial today in which most people will notice only the criticism of Hillary Clinton (for favoring "loopholes" in the new campaign finance reform law), the following sentence appear (no sic; I'm using the NYT's new grammar):

At issue are a set of regulations that delineate the law's ban on raising, directing or receiving unlimited funds from corporations, unions and rich donors for state parties.

At issue are a set of regulations? At issue also, it would appear, are whether the editors' grammar book have gone missing.

Thursday, August 01, 2002

Sleazebag Image of All Pols A "Silver Lining" for Dems - Democrats used to protest when Nixon's defenders said "they all do it." More recently Democratic defenders of Clinton(s), and now Torricelli, protest that they are no worse than the Republicans (an interesting argument, given how bad they think the Republicans are).

"Don't forget we've had mayors and members of Congress go to jail," said political scientist Ross K. Baker of Rutgers University. "We had a senator ensnared in Abscam. The mayors of Camden sort of queue up to go to jail."

In June, a Star-Ledger/Eagleton-Rutgers poll found that 64 percent of New Jersey voters think that most people who go into politics do so for personal gain, and 69 percent think that once in office, politicians "look out more for their own interests than for those of the public." The poll also found that voters think that for every 10 politicians, about half are corrupt.

And they think politicians elsewhere are no cleaner than theirs, the poll found.

Democratic officials invoked these findings today as a silver lining to the gloomy news.

It would appear that, at least in New Jersey, the sleazier all politicians are regarded, the better the Democrats' chances.

Washington Ethics (?) - Washington ethics, it could be said, is to ethics what military music is to music, legislative history is to history, and legal fiction is to fiction. I refer, of course, to Sen. Torricelli escaping from the Senate Ethics (?) Committee with being only "severely admonished."

Escape? What do you mean escape? According to the Washington Post, the three page rebuke of the sleazeball Senator (I can say that now with a clear conscience, because it's official) was "one of the sternest condemnations of a member in recent years." And it may well be, but what does that say? At least the Ethics (?) Committee thought it had done some heavy duty sanctioning because, according to the Post, their "use of the word 'severely' appeared to signal that committee members did not regard the offenses as trivial."

But others did. Senate Majority Leader Daschle (no doubt unrelated to his desire to aid Torricelli's re-election so that he can remain Majority Leader) even issued a written statement all but proclaiming Torricelli's vindication:

It is now clear from the committee's extensive review and findings that the sensational allegations made against Sen. Torricelli by Mr. Chang have been proven false and without foundation.

And why shouldn't he? As Torricelli's lawyer told the press, "the committee went out of its way to say, in most instances, that Torricelli didn't knowingly break Senate rules."

No reason to censure or expel him if all he did was lie, take illegal gifts from someone he then helped (they all do that, right?), and knowingly broke Senate rules only some of the time.

Tuesday, July 30, 2002

Moral Equivalence in the Washington Post – The Post ran another of its unintentionally revealing news articles today, about the troubles of Sen. Robert Torricelli (D, NJ), who is about to appear before the Senate ethics committee investigating the illegal contributions to his campaign and possibly illegal gifts he is alleged to have received. After a long discussion of the allegations against “The Torch,” which are pretty sleazy (but even politicians are innocent until proven guilty, and the Justice Dept. did refuse to indict him), the Post then discussed the threat these allegations, especially if proven, pose for his upcoming campaign for re-election. It noted, however, that he still had some things going for him. Then came this priceless sentence:

And Forrester [Torricelli’s Republican opponent], little known among Garden State voters despite his GOP primary win, carries some political baggage himself, having run a company that manages prescription drug plans for large employers.

Disparate Impact Disputation, Continued... - Garrett Moritz is back with more disparate impact defense. Or is it forth? As he points out, we have gone back and forth so many times now that it is hard to keep straight who's on forth and who's on back.

Rather than beginning my response at the beginning let me first turn to the end and both acknowledge and second Moritz's generous comments in his closing paragraph about the substance and the tone of our long-running exchange. (Go read it now.) Such civil and pleasant disagreements are unfortunately rare. Indeed, he is too kind; even for a geezer like me, keeping up with "a whippersnapper" like him is a smaller feat than he imagines.... Now, if I can just force these decrepit old fingers (and the mind to which they are tenuously connected) to slow-dance across the keyboard (boogieing is out of the question), let us go back to the beginning and return to our debate over disparate impact.

Now that you've read Moritz's last paragraph, you need to return and read the preceding paragraphs if you haven't already, for I'm not going to summarize his points here. These posts are already too long, and in any event my summary would no doubt not do justice to his own thoughtful presentation.

One more preliminary observation: my basic argument, put forth to some degree in most of my exchanges with Moritz and elsewhere on DISCRIMINATIONS, is that disparate impact -- theory and practice -- represents a degradation of the civil rights ideal. By draining the concept of discrimination of any requirement for intent, it is of necessity based on the assumption that statistical disparities alone (absent compelling justification) are a violation in need of a remedy and that fairness itself requires something approaching proportional representation.

Seem too strong? Consider the following, from Rick Hertzberg's review of a new book by political theorist Robert Dahl in the New Yorker (link via Stuart Buck, whose comments on Hertzberg/Dahl are devastating):

Imagine, if you can, that African-Americans were represented "fairly" in the Senate. They would then have twelve senators instead of, at present, zero, since black folk make up twelve per cent of the population.

This assumption, and the new conception of fairness that it has spawned, in turn requires that racial preferences be implemented, that group rights take precedence over individual rights, and that the government be engaged in a never-ending process of racial and ethnic regulation to ensure that the numbers in all areas of American life don't harbor "underrepresentation" or "overrepresentation." It requires, in short, abandoning the core American value -- arguably THE core American value -- that every individual be judged "without regard" to race, religion, or national origin.

Now, notice that virtually nothing in Moritz's current long post, or his earlier ones, actually defends disparate impact. Instead, he is at pains to show that such policies are legal, that Congress has a right to implement them, that courts shouldn't interfere, etc., etc. I am definitely not one to disparage lawyers or law -- quite the opposite -- but most of this discussion misses, if not the point, at least my point. For the sake of argument, assume for a moment (but only for a moment) that everything Moritz says is persuasive. That still would tell us nothing about whether disparate impact is a Good Thing. It isn't. Even if Congress or private organizations can impose it, they shouldn't.

Turning, finally, to a few specifics:

1. In my last post I took issue with Moritz for leaning on the weak reed of "legislative acquiescence" to bolster his view that the Supremes should avoid ruling now on the propriety of disparate impact in the Fair Housing Act, but in doing so I noted that "pursuing this controversial theory of 'legislative acquiescence' here would take us too far afield." Like a determined hound chasing stray rabbits into every nook and cranny when he should remain on the trail of bigger game, however, Moritz does pursue it, although he admits in the end that it was "a detour." Nevertheless, as he says, it was "fun" even if diverting. It was a virtuoso performance, and may even be right, whatever that would mean here.

2. Moritz obviously relishes word games, but it's hard to believe he seriously believes that an insistence on some consistency in our understanding of what equality entails -- equality, after all, is a value at the very heart of our Constitutional enterprise -- is comparable to such silly examples of words having different meanings in different contexts as "He's on fire! Get him the ball!" v. "He's on fire! Get a bucket!" Even Sasha Volokh's entertaining example of the changing meanings of "gift" hardly rises to the level of Constitutional gravity.

It is certainly true that words can have different meanings in different contexts, a point that was addressed head on by Justice Powell in his Bakke opinion:

The concept of "discrimination," like the phrase "equal protection of the laws," is susceptible of varying interpretations, for as Mr. Justice Holmes declared, "[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used." Towne v. Eisner, 245 U.S. 418, 425 (1918)

The question in Bakke was whether the vision of equality Congress wrote into Title VI of the Civil Rights Act imposed a different standard from what the 14th Amendment required. All agreed that it did not, that Title VI was intended to mean what the 14th meant (though there was disagreement over precisely what that was, with the minority arguing that both required a colorblind standard). Our society can survive different meanings of "fire" in different contexts, and even different meanings of "gift," far more easily than it can conflicting meanings of the requirements of equality -- individual rights here, group rights there; official neutrality here; racial/ethnic/religous preferences there; etc.

Before blowing the whistle on our word games, however, I think it is necessary to observe that Moritz's own apparent understanding of exactly what "disparate impact" means misses the mark. Once some confusing conceptual underbrush is cleared we may be able to narrow somewhat the range of our disagreement. Consider:

[T]here is a fundamental difficulty when it comes to stopping discrimination: some discrimination, the worst kind of discrimination, discriminates without speaking its name. Sometimes an employer fires every black employee and no whites, and yet does not say "I hate blacks, so I fire them"; instead, they say, "I am committed to racial equality; however, I am also a businessman and these particular workers were simply not cost-justified." If that's true, it's a legitimate business purpose and will rebut the prima facie case proved by a showing of disparate impact; for instance, if the employer shows data on employees which proves the point. However, if the employer has no data, or data that shows that the workers were just as productive as anyone else, they'll probably lose.

The trouble here is not with who would win or lose; it is the larger point that this is not a disparate impact case at all. Back to basics: disparate treatment is depriving someone of some right or benefit because of/based on/due to race, and it requires intent. Disparate impact is following a policy or practice that adversely affects minorities disproportionately, without any intent to do so, unless the policy or practice can be justified as reasonable or necessary (the threshold a challenged policy must surpass tends to range from amorphous to elastic).

Moritz's hypothetical employer fired all and only black employees. If he can justify each firing with relevant business or performance data he should win; if he can't he should lose. This is a classic disparate treatment case. Not even the harshest critics of disparate impact argue that "effects" should be ignored. They are nearly always relevant (it's hard to imagine victims of discrimination in the absence of any discriminatory effects); they can raise a prima facie case of discrimination; and in certain circumstances, such as the hypothetical Moritz has in mind, they can even provide sufficient evidence of ... disparate treatment. If the adverse affect on minorities is sufficiently severe and is unpersuasively explained, discrimination can be inferred even in the absence of clear evidence of a discriminatory intent. Moritz seems to believe that if disparate impact were done away with no discrimination complaints would succeed unless evidence of clearly stated intent were found. Not so, but in order to avoid that imaginary fate, disparate impact theory severs the concept of discrimination from intent altogether, and that is going too far, for reasons I will address below.

3. One of the biggest problems with disparate impact is determining what standard a challenged policy or practice must meet. Is it absolute business necessity, such as the business failing without it? Pretty high business necessity, such as less profitability without the challenged policy? Or mere reasonableness, such as it seems like a good idea? Moritz argues "it is not true now, nor was it ever, that disparate impact under civil rights statutes necessarily equals a finding of discrimination. Rather, it serves a burden-shifting function." This is pure fancy, or wishful thinking. On the contrary, burden-shifting is not mere burden-shifting. It can be onerous if the justification standard the challenged policy must meet is too high, as it quite often has been in real cases.

Take the original case of Griggs v. Duke Power Company, where Duke Power's policy of requiring all new hires to have high school diplomas was found to be discriminatory. What would a justification of such a policy look like?

Duke Power's argument was that a diploma was a valid and reasonable proxy for such essential qualities as ability to complete a task, punctuality, responsibility, willingness to work, delayed gratification in the form of foregoing grasshopper pleasures for ant drudgery (I'm putting words in Duke's mouth here, but you get the drift). There was no evidence that this argument was disingenuous or dishonest. Perhaps Justice Moritz disagrees. He and at least four of his brethren or sistren think Duke Power (and its shareholders) should suffer whatever loss would flow from abandoning this policy so that it could hire more minorities. (In doing so the majority dismisses Justice Jessie's cost-benefit analysis demonstrating that the devaluing of education in the majority's decision will produce far greater long-term social harm than the benefits that result from hiring a rather limited additional number of minority employees.) Is society better off with Justice Moritz (or Justice Jessie, for that matter) making these decisions instead of management, admissions officers, etc.?

Speaking of admissions officers, what exactly is the defense of the SAT against disparate impact attacks? Assume that it does predict with some accuracy grades in the first year of college. So what? Does it predict grades in later years? Do grades predict success in life? What is success in life? Should Congress and even judges of the quality of Justice Moritz be making these decisions for all of us?

Now for one of my favorites, the under-noticed but real phenomenon of what could be called reverse disparate impact (though I would never use such a term, for the same reason I don't believe there is such a thing as reverse discrimination). Take, for instance, the newly popular policy of giving admission preferences based on overcoming adversity, etc. (Look here for a discussion of the spreading "sob story sweepstakes.") What if such a policy were challenged by white plaintiffs claiming that this policy benefited minorities so disproportionately that it amounted to disparate impact discrimination, citing Justice Moritz's penetrating observation in an earlier case that "some discrimination, the worst kind of discrimination, discriminates without speaking its name."

4. Should it matter whether the college in the above example is private? I ask, because to Moritz it seems to make all the difference in the world. Once again he spends a large portion of this even larger post insisting on the centrality of the distinction between "the Equal Protection context," which he describes as "a limitation on what legislatures can do," on the one hand, and "the axis of Congressional power," usually under the Commerce Clause, on the other. He is untroubled by courts striking down as discriminatory activity in one area what Congress allows or even requires in another.

And once again, I think Moritz makes far too much of this distinction, real though it is. State action, for example, extends far beyond "legislatures," and similarly Congress regulates far more than private businesses. Title IX, as readers of these exchanges know too well, has been interpreted (by colleges themselves, and others) to require colleges to eliminate men's teams in order to equalize participation rates between men and women.

Whatever weight one chooses to place on this distinction, however, if a future Supreme Court were to decide that the 14th Amendment requires pure colorblindness (hope springs eternal on my side of the aisle as well) that would put the kibosh on Congressional power to decide otherwise. And in the alternative, even though the 14th is not now interpreted to require pure colorblindness, on Moritz's own theory Congress is free to do so. Indeed, in the foundational Bakke case a four-justice minority held that Title VI of the Civil Rights Act of 1964 went beyond the 14th Amendment and required a colorblind standard. (I think they were right.) If a future Congress, over the strenuous objections of Rep. Moritz (D, Harvard), were to adopt (or re-adopt, if you agree with the Bakke minority) this strict colorblind standard, would Justice Moritz still argue so eloquently for judicial restraint, or would he side with today's liberals who argue (like yesterday's conservatives) that the original intent of the framers of the 14th Amendment clearly was to allow racial discrimination when it was reasonable?

If this uncertainty over the depth of Justice Moritz's commitment to judicial restraint seems uncalled for, recall that in the legal attack on Proposition 209 in California, which committed the state to colorblind racial neutrality in contracting, admissions, etc., the ACLU and its friends actually argued that the 14th Amendment barred the state from banning preferences! Not the legislature, but the state itself, in the form of the people amending their Constitution. Really. I'm not making this up. I don't have ready access to a law library, but I've searched all Justice Moritz's prior opinions that I can find and I can't find anything he's written rejecting this bizarre view held by a number of his ideological fellow travelers.

5. Moritz has gotten himself so entangled in the separation of powers and judicial restraint that he has not focused on what discrimination is or what I regard as the central problem of disparate impact -- that it is based on, and indeed requires, a conception of equality that distorts what has been (and should remain) a fundamental core value, the belief that rights inhere in individuals and not groups and that foremost among those rights is that the state must treat its citizens "without regard" to race, creed, or color.

Wherever policies that have a disparate impact are regarded as discriminatory (again, in the absence of a persuasive justification), the "remedy" -- whether imposed by a court or undertaken "voluntarily" by an organization, quite possibly to head off litigation -- will inevitably require "racially conscious" hiring, admissions, etc. Further, it will require constant monitoring and regulation to keep the numbers in line with various guidelines, expectations, and requirements. In short, it will tend to insure that race remains contentious, which I suspect is one of the goals of its adherents. This will inevitably result -- indeed, for substantial numbers of people it has already resulted -- in a conception of equality that elevates proportional representation (since that is regarded as the "natural" result of any non-discriminatory system) over the "without regard" principle. Indeed, failure to "regard" race will come to be seen, as it is already seen by many, as the essence of discrimination. "Diversity" will become, as it has already become for many, the most fundamental value, and its implementation and maintenance will have turned yesterday's vice -- assigning benefits and burdens on the basis of race -- into today's mandatory virtue. Disparate impact theory, in short, turns civil rights inside out and upside down. Finally, as I have argued (here and here), if the assumptions on which disparate impact is based catch on it will not only do away with neutrality regarding race and ethnicity but regarding religion as well. This is not good.

6. Boy, I sure hope the Whippersnapper delays his reply long enough for me to get my warm milk and nap....

Understanding or Sympathizing? - Sasha thinks I was being too harsh on the Post Style section in this post on this article on Moussaoui's linguistic genius. And perhaps I was. Some of Moussaoui's insults are funny, certainly, and the article was only in the Style section. I shouldn't have called it news, although in my defense, someone quickly reading it from its position on the front page of the Post's website might not have noticed it was in the Style section. And besides, it's frequently difficult to tell the difference between Post news stories and style/opinion pieces.

Still, I think the article's overwhelmingly sympathetic tone is a bit excessive. True, Moussaoui feels that we are abusive and hypocritical. But, the article states that truth and uses it to indicate that Moussaoui is not as bad as many think he is, that's he's only misunderstood. I'm all for understanding one's enemy, but understanding him shouldn't have any bearing on what he did. If he wants to kill as many Americans as possible, that's simply bad, whatever tricks he can play with three-letter acronyms. The Style section article suggests that once we finally understand Moussaoui, we'll see that he's not crazy, he's not evil, he's just a different kind of genius. Moussaoui, clearly, is only afraid for his own safety in a hostile, unfair environment and trying to defend himself the best way he knows how, with humorous, insightful motions, and "playful," "tweaking" asides.

He asks rhetorical questions, makes sarcastic asides and sometimes indulges in an almost whimsical irony.

Sasha agrees, and calls this "creative use of language."

I think that is giving Moussaoui too much credit. I can understand why someone with Sasha's verbal dexterity would be impressed by, well, verbal dexterity, but surely he gives too much credit to occasional expressions of cleverness. I don't think Moussaoui is clever. I think he's nuts.

An excerpt from one of Moussaoui's motions, after he fired his lawyers, from The Smoking Gun:

Taking account of the viciousness of the tactic employ (no legal assistance, no phone, no information, 24 h light and surveillance.) I expect anything from the US government. Lee Harvey Oswald [?] end is a distinct possibility. Alexandria jail is constantly having new Deputy, it will be easy to claim that a distraught Sept 11 family member gain employment and shoot me. Or they might claim that I committed suicide after all they already have done the ground work by claim that I was mentally unstable, paranoid.

From the Post article:

Taken out of context, Moussaoui's individual requests seem erratic, at best. In an effort to prove that the FBI had him under surveillance long before his August arrest, he asked for a forensics expert to examine an electric fan that he claimed had been bugged by federal agents. He claimed that the fan had been left "on my car" and that he had unsuspectingly taken possession of it. The FBI, in his account, could claim he had stolen the fan, willingly taking possession of the bug and thus, whatever it revealed would be admissible in court. In pleading after pleading, his demand to see the fan becomes obsessive, the request shortened, and syntactically garbled into something that sounds manic and delusional: "Where is my Bug FAN!" and, "The FBI must give me the bug fan."

Even with the background, it still seems erratic, manic, and delusional. This guy is dangerous. I think he should probably have been tried in a military tribunal in the first place; if they can hold US citizens militarily incommunicado, why not an insane propaganda-spewing foreigner? But, for some reason they didn't, so here Moussaoui is, in a civilian court, with people understanding and sympathizing with him because of his requests for his "bug fan." And it looks like the Post is helping him.

Sunday, July 28, 2002

Just the Ticket - One of the difficulties of diversity/multiculturalism, as with racial or ethnic preferences in general, is knowing when you're supposed to take "racenicity" into account, and when you're not. (I know "racenicity" isn't a word, but perhaps it should be; it's at least as good "ethno-racial identity" and its variants.)

Take the recent lawsuit against the U.S. Soccer federation. Humberto Martinez, who emigrated from El Salvador 20 years ago, alleges that he was refused a ticket to a seat in the lower half of RFK stadium in Washington when the U.S. team faced Honduras because the owners wanted those seats close to the field packed with fans of the U.S. team. Martinez was denied a ticket, he claims, because he is Hispanic and it was assumed he would root for Honduras. Discrimination on the basis of national origin is and should be illegal, but it is legal for teams to assign tickets based on geography or team loyalty, i.e., preferences for the home team fans.

This problem of distinguishing illegitimate "racenicity" consciousness from legitimate consideration of non-racenicity qualities that overlap considerably with race/ethnicity is analogous to the controversies over racial redistricting that have so agitated the courts. Racial redistricting is not allowed, but partisan redistricting is. Since blacks overwhelmingly vote Democratic, in real life this is a distinction without much of a difference, but last year the Court honored it in Hunt v. Cromartie when, with a 5-4 majority, it finally upheld a North Carolina district at the heart of this controversy because "one could not easily distinguish a legislative effort to create a majority-minority district from a legislative effort to create a safely Democratic one."

Many conservatives were disappointed in this decision, and particularly angry at Justice O'Connor for switching sides, but I think they were mistaken. The decision should be applauded for its insistence on intent as a necessary ingredient of discrimination. Since the liberals on the Court (and off) insisted on intent here, it should be harder for them to ignore it in other cases where policies or programs have a disparate impact.

But I digress. Well, not really, for where Mr. Martinez gets to sit in the stadium raises interesting questions about where his supporters stand on diversity and multiculturalism, which they vociferously support. Here, Mr. Martinez wants to be treated as an individual, or possibly as a Salvadoran-American, and not lumped in with all Hispanics. But if and when his sons or daughters apply to college they will no doubt be classified as Hispanic, and probably awarded a preference on that basis. We know what the ACLU, MALDEF, La Raza, et. al. will say then, and it won't be a demand to treat the little Martinezes as individuals.

If "culture" is as hard and fixed as the multicults claim, and if there is a "Hispanic" culture shared across nationalities and even ethnicities, then perhaps it was not so irrational to assume that Mr. Martinez would cheer for the Hondurans after all. But if, as I believe, that assumption is not accurate, then it is as unreasonable to make it for admission to college as for a good seat at RFK stadium.

Saturday, July 27, 2002

Disparate Impact Disputation - Garrett Moritz once again valiantly assumes the Sisyphian burden of pushing a coherent and morally compelling argument for disparate impact up the hill for our inspection. Once again it rolls back down, leaving shards of both interesting observations and wishful thinking in its wake. In the process he attributes a number of opinions to me, some of which I actually hold. (See here, here, and here for earlier salvos.)

I argued in my most recent post that, contra Moritz, disparate impact wasn't yet dead but that a fair housing case the Supremes recently agreed to hear might put one of the final nails in its coffin. Moritz agrees that he had been "overly broad" (don't you love how lawyers talk?) in pronouncing its death, but now he argues that "the kind of disparate impact we were talking about earlier," i.e., "whether a statute or government policy ran afoul of the equal protection clause," is substantially different from "the context of government regulation of what individual economic actors can do -- e.g., regulation of landlords." The former, he says, really is about dead; the latter might live (hope springs eternal) if only an activist Supreme Court would rein itself in and defer to Congress's interpretation of the Fair Housing Act, as Moritz (presumably a believer in judicial restraint, at least when conservative courts must judge liberal legislation) believes it should.

I suspect Rosenberg may feel this distinction is a cop-out -- he likes to think of "discrimination law" as one single concept -- but there actually is a pretty big difference between what the Constitution forbids legislatures from doing and the way Congress chooses to regulate private actors in the economy.

Well, yes ... and no. First the no, or rather the no's: it's not so much that this distinction is a cop-out -- there is a distinction between Constitutional and statutory interpretation -- as that it's overblown here. "[T]he kind of disparate impact we were talking about earlier," after all, was precisely the sort that involved government regulation of private economic activity. Griggs v. Duke Power Co., in which the Supremes gave their blessing to disparate impact, involved the question of whether the Civil Rights Act of 1964 barred a private actor (Duke Power) from adopting, without any discriminatory intent, a racially neutral policy (requiring a high school diploma of all hires) that had a disparate impact on minorities.

Another no: what Moritz wants here is not judicial deference to Congressional action, but to Congressional inaction. Moritz writes that in an earlier case, Town of Huntington v. NAACP (1988), the Supremes held that "the question of whether disparate impact may qualify as 'discrimination' for purposes of the FHA should be left to Congress." In fact, the court expressly "reserved" the issue. That is, writes Roger Clegg, general counsel of the Center for Equal Opportunity,

it raised and recognized the question but then decided not to resolve it. In that case, the Reagan administration had filed a brief urging the Court to rule against the "disparate impact" approach. The first Bush administration continued this policy, but the Clinton administration reversed it

It is thus entirely proper for the Court to revisit this issue. Moreover, even if Moritz's and not Clegg's view of Town of Huntington were correct, what Moritz is arguing here is that the current Court should regard the failure of subsequent Congresses to reverse it by legislation (which it can do when it believes the Court has misinterpreted a statute) is a reliable indicator of Congressional intent in the original fair housing legislation and should be regarded as binding.

It is hard enough to interpret what Congress actually does, much less what it doesn't do, but pursuing this controversial theory of "legislative acquiescence" here would take us too far afield. One of the many problems with the theory that Congress can in effect rewrite a statute by failing to override a judicial misinterpretation is that statutes must be signed by the president to become law. How can a president veto Congressional inaction of which he disapproves? I don't have access to Lexis or Westlaw (anyone want to give me a free subscription? I'd settle for cheap), but as I recall a search on this topic would turn up many references to the theory of legislative acquiescence as "a weak reed upon which to lean" and "a poor beacon to follow."

But Moritz is right about one thing, or at least almost right. I don't "think of 'discrimination law' as one single concept." Constitutional and statutory standards can differ, as can state and federal. But I do believe that in order to be coherent discrimination law, of whatever variety, must be based on a coherent sense of what discrimination actually is. Now it is possible that I may prefer -- no, insist on -- coherence here because I am not a lawyer. Lawyers (and I'm sure Moritz is or will be a very good one) recognize that for better or worse Congress is not always coherent, that it may write one standard into one law and another elsewhere, and that courts must honor each and all unless they run afoul of the Constitution. Thus my argument is not that discrimination law is coherent, but that it should be. It is worse than awkward for "discrimination" to mean one thing under the 14th Amendment and something else under the Civil Rights Act or Fair Housing Act.

Calvin Trillin once wrote that barbecue not made in Kansas City could be very good ... but it wasn't barbecue. Similarly, policies or practices that have a disparate impact may be very bad, and may even deserve to be prohibited, but they're not discrimination. Justice Scalia notwithstanding, it may be necessary to impute an intent to Congress when it acts, but it will almost always be futile to attempt to do so when it doesn't.

Friday, July 26, 2002

Reproducible Results - Hanah just sent me this very balanced article from the New York Times about individual scientists asking scientific journals of microbiology to withold information from their papers, so terrorists could not benefit from the knowledge. I was very impressed that, even when the scientists worked for government organisations, the scientists, and not the government, were the ones requesting that the information go unpublished. Still, if crucial information is not included in the paper, the editors of the journals worry that the results published might not be reproducible.

I am very skeptical about the ability of terrorists to reproduce cutting edge scientific work. This summer, I'm working for NIST (National Institute of Standards and Technology) - the government, I know... - in chemical physics. Nanotech, to be precise. Anyway, I have spent all summer, with a pile of about 100 papers (I'm serious!), trying to reproduce results. We have state-of-the-art equipment, a group of first-class scientists, and complete papers, but we still can't do it.

Reproducing results is just plain hard. No matter what, your equipment is not going to be the same as that of the group in the paper, and the miniscule things that the authors didn't bother to put in are always going to trip you up (you need to clean your glassware with sulfuric acid, if you expose that to the air it burns up, if you put that in all at once your experiment blows up, etc...). Sure, papers are endlessly helpful, but they simply can't tell you everything in a quick and easy ten pages.

I know nothing about microbiology, and certainly I bow to the judgement of the microbiologists who think their work is dangerous. Still, I can't imagine that biological materials would be less touchy than what we're working with. How are the terrorists going to order expensive custom-order bio molecules? How are they going to get the necessary equipment? How are they going to get highly trained scientists to help them?

The article states a precedent:

In June 1940 ... the academy secured the cooperation of 237 journals in withholding papers on uranium and related matters, resulting in "the almost total cessation of publication on nuclear physics."

The academy, however, circulated the articles privately among American physicists.

Perhaps that was needed, then, I don't presume to judge. However, this isn't Germany we're dealing with.

Muslims & Multicults - Joe Katzman has a brilliant post today on his Winds of Change about Muslim integration in the West (or lack thereof) and the multicults (via InstaPundit). As I read him (I hope he and you will think fairly), he emphasizes both the reality and centrality of certain core values (denied by PoMo), one of which certainly must be racial and religious neutrality.

You can see why this fits so perfectly into the groove of my one-track mind.

Locked and UNloaded - In a 7/23 email to subscribers Gun Tests magazine announced that its August issue will contain a story that National Guard troops deployed in many airports after 9/11 carried unloaded weapons.

Knight-Ridder newspapers have reported that armed National Guard troopers deployed to airports for security following September 11 did not always carry ammunition in their pistols or M16 rifles, though they may have had access to magazines loaded with live rounds. National Guardsmen called up for security remained under the control of their state's governor, who determined policy on firearms. According to Guardsmen who served at Philadelphia's airport for seven months following the terrorist attacks, the armed soldiers at 16 airports around Pennsylvania were forbidden from patrolling with loaded firearms. The newspapers report that New York Guardsmen were also required to keep empty magazines in their rifles and pistols.

Pardon me if this is old news to everyone, but I missed it earlier. A quick check revealed that the Philadelphia Inquirer published the leading article on this matter on May 26. An excerpt:

The Pa. guardsmen's presence was intended to reassure passengers. But they say their ability to handle an emergency was compromised....

For seven months, more than 80 National Guard troops watched almost 12 million passengers walk through the gates and security checkpoints at Philadelphia International Airport.

Among the most visible responses to the war on terrorism, the soldiers stood ready, dressed in Army fatigues, their 9mm pistols strapped to their sides.

Thursday, July 25, 2002

... they [the motions] show an angry man focused on what he feels is American hypocrisy and determined to hold this country to its stated principles of freedom and justice. Even as observers speculate about Moussaoui's mental stability, his writings suggest that he was developing a legal strategy, if not to save himself then to call to account those who he feels are abusing him.

Hypocrisy? Abuse? Where? Since Moussaoui believes we are being hypocritical and abusive, though, the Post can state his beliefs as truth, without presenting any evidence.

... they're also playful at times, especially when tweaking or goading Judge Leonie Brinkema or his court-appointed standby lawyers.

So, according to the Post, tweaking and playful is saying Brinkema has a "legal pathological killer instinct with ego [boosting] dementia to become supreme," and calling his court-appointed lawyers "death lawyers."

Here's the concluding paragraph:

Strictly speaking, he wasn't one of the 19 hijackers. He was arrested in Minnesota on immigration charges almost a month before the Sept. 11 attacks. Between intending to do something -- whether it's murder or marriage -- and actually doing it, lies an existential gulf. Sitting in prison for almost a year, Moussaoui, still a young man of 34, is aware of at least two roads not taken: that of marriage and family and life, and that of martyrdom. It's not clear to what degree he regrets the former and feels guilty about the latter. The difference between Moussaoui and the terrorists of Sept. 11 is that he has, for now, time to ponder these questions. [emphasis added]

By twisting a statement of complete lack of knowledge, the emphasized sentence manages to portray Moussaoui in a favorable light.

Is this compilation of loaded language, reprinted beliefs, and unsupported interpretation supposed to be news?

Monday, July 22, 2002

The Neas Have It - Judicial Activism: Noun phrase. A judicial opinion with which you, and by implication all right-thinking people, disagree.

Ralph Neas, president of People for the American Way, is (surprise!) opposing the nomination of Priscilla Owen to the Fifth Circuit Court of Appeals. According to Neas, "When she doesn't agree with a law passed by the Legislature, she tries to amend that law by her judicial opinions."

I am now taking bets from anyone who believes Neas believes what he said, i.e., that he will consistently apply this anti-activism principle to the next liberal judge who flexibly interprets a staute to reach a conclusion he approves.

Incidentally, the SFGATE article quoting Neas (linked above) identifes People for the American Way as a "liberal-leaning advocacy group." If PFAW is only liberal-leaning, I wonder who SFGATE regards as a full-fledged liberal group.

Death to Disparate Impact - Recently Garrett Moritz and I lobbed some friendly blog comments at each other over disparate impact. Look here. Moritz's point, or one of his points, was that I was "tilting at windmills" because disparate impact was already a corpse, executed and interred by conservative courts.

It still lives in a few legal nooks and crannies, however, one of which is federal housing law. For a good discussion of this issue see Roger Clegg's excellent article on NRO about an unheralded case the Supremes agreed to hear at the very end of the last term. I agree wholeheartedly with Howard Bashman that Roger Clegg's essays are worth your time.

Sunday, July 21, 2002

Friday, July 19, 2002

From the Hinterland... - You read the strangest things when you're on the road. Take Julianne Malveaux (No, you take Julianne Malveaux) in USA Today. What can I say? It was free, which is only a little more than she's worth.

Some columnists disguise their distaste for America, but not Ms. Malveaux. The last thing I remember from her is her refusal to celebrate July 4. Today, she blames "the corporate hall of shame" on two things: corporations "take the capitalist message of profit maximization too seriously," and "government takes its role of containing capitalism too lightly."

Now that I think about it, Ms. Malveaux does disguise her distaste a bit, since in her heart of hearts she doesn't want government to wage a cold war to "contain" capitalism. She wants a hot war to roll it back.

Tag Creates Inequality - My father's previous post reminded me of an ancient (June 20th) Fox News article that didn't seem to get much attention on the Blogosphere: a Santa Monica elementary school banned the game of tag because, as Franklin Elementary School Principal Pat Samarge says, "Little kids were coming in and saying 'I don't like it.' [The] children weren't feeling good about it."

Really. Well, if the kids don't like it, they don't have to play it. But that's no reason to ban the game for the kids who do like it. Some kids realize that you can lose a game and still be a good person. Some kids realize that, especially in a game of tag, if you lose you can try again, and do better the next time. Some adults even think that these are good lessons to learn.

Another gem from the same principal: "We had some children who were not playing 'it' appropriately. How do you differentiate between those that are playing correctly and those that aren't?" Anyone have any idea what that means? As far as I know, tag is a very fluid game; there is no "correct" way. I'm also sure that kids would not appreciate adults coming in and telling them who's playing right and who is wrong. If someone is not playing correctly, you go and play with someone else. Kids have grasped this long ago. Why can't some adults seem to?

If schools ban tag because it hurts self-esteem, what will they ban next? Soccer? School dances? Tests? If children don't learn when they're young that everyone is not equal in everything, when will they learn it? If showing that everyone is equal requires banning everything, you'd think egalitarians would check their premises. Children do not need to be protected from inequality, because if they are protected from inequality, they are protected from everything. A child's self-esteem is sturdier than that.

Update - Here's a really old article from NRO about banning dodgeball.

Thursday, July 18, 2002

Vanished Bloggers, Vanishing Valedictorians - Sorry about the silence of the last few days (hope someone noticed). Jessie graced us with her presence last weekend (leaving the cobalt nanoparticles at NIST to fend for themselves). Taking her back to her summer internship we had a delightful dinner with visiting senior Volokh Conspirator Eugene Volokh and a bakers' dozen or so of his friends in D.C on Monday, and then my wife and I headed south to help celebrate the 100th birthday of one of my uncles in Pensacola, Fla.

But I've been collecting stuff along the way. For one thing, I found more Vanishing Valedictorians, the subject of a very good article by Joanne Jacobs on TechCentralStation that some of you may have seen.

Stopping off with friends in Greensboro, N.C., I happened to notice that the local paper that day had an impassioned OpEd on "Education and the Injustice of Equality," whose arguments with reference to Guilford County, N.C., echoed many of Joanne Jacobs points. (As of this writing the article is not on the Greensboro News-Record web site, www.news-record.com, but other, older articles are listed and so this one may be there shortly. It appeared on July 16.)

Shortly after Guilford County school officials decided to do away with valedictorians and salutatorians, the state Board of Education decided to ignore the dismal fourth and seventh grade writing scores from that county. The OpEd's drift can be seen in the following excerpt:

Although these are distinct events, they are linked by a philosophical thread that has strangled public education for decades.... The common thread can be called "egalitarian".... This theory maintains that no student is more intelligent than any other; that competence and merit are evenly distributed. Expand the theory to encompass teachers and schools, and you get jettisoned test scores. Of course, this is sheer nonsense that has nothing to do with reality.

This must be a hot topic in Greensboro and Guilford County, for in looking for an online version of the OpEd to link (not there yet, as mentioned) I discovered that four days earlier, on July 12, the News-Record had published another OpEd making the same argument.

Everybody is supposed to feel equal and, most especially, feel good about themselves. Don't get too competitive, according to this notion, because somebody's self-esteem will be incurably damaged for life. And what better way to avoid that horrifying prospect than not to recognize academic achievement with valedictorians and salutatorians.

I heard enough about self-esteem and sensitivity during Jessie's trek through elementary and middle school that now they sound to me more like diseases to be avoided than qualities to be cultivated. It's enough to make curmudgeons even out of people far more reasonable than I.

It's the deportation of Elian, in reverse. Back then I wrote an article, "Hillary Flip-Flops on Kids Rights" (Wall Street Journal, 4/27/2000, p. A26; link/search requires registration/fee), noting that Hillary Clinton had abandoned the position at the foundation of her legal career, a series of articles arguing that childen can have legally recognized rights at odds with their parents, and the competency to assert them in court.

There were those (I was one) who regarded the deportation of Elian as akin to a slave mother drowning as she swam to freedom with her child only to have the child ripped from his relatives in the North and returned to his loyal Uncle Tom father who, when offered freedom with his son, chose to remain on the plantation. Anyone who felt that way then who does not protest to the State Department now is guilty of Hillary-class hypocrisy.

Saturday, July 13, 2002

Socialists at Heart? - According to an article in the Washington Post, Fluor Daniels, a large construction firm, told Virginia transportation officials that it could widen a particularly congested section of the beltway to 12 lanes using toll revenue from the new lanes instead of state money.

This sounds like the proverbial win-win situation: the state spends no money; rich people (or non-rich people in a big hurry) can buy their way into fast lanes; and everybody else experiences less congestion because the rich and fast are no longer clogging their lanes. In fact, this proposal could even be seen by uncomfortable Democrats as a tax on the rich, who would happily pay it for the additional benefit it provided, and it would have the added benefit of reducing traffic for everyone.

But not everyone thinks this way.

A year ago, Gov. Parris N. Glendening (D) stopped a state study of similar proposals for the Beltway in Maryland, saying it would be unfair to low-income residents to allow affluent drivers to buy their way out of traffic.

If this is unfair, what must the good governor think of, say, first class travel? The Concorde? Expensive houses, good wine, luxury cars, fine clothes, etc., being limited to rich people? In fact, why not just get rid of rich people altogether?

History Lesson II: Sean Wilentz, the Historian as Hanging Judge - In History Lesson I below I offered some comments about Princeton historian Sean Wilentz's "sclerotic attack" (it's fun to quote yourself!) on Justice Scalia on the New York Times OpEd page, along with links to longer and better criticisms by Peter Berkowitz and Juan Non-(Volokh). My more recent posts on academic history v. "law office history," and especially Prof. Jack Rakove's discussion of his impeachment testimony, with all of its self-congratulatory talk of historians as nuanced, comfortable with complexity, humble before data, etc., reminded me of Prof. Wilentz's own somewhat notorious impeachment testimony before Congress, which I have just reviewed.

Complexity, ambiguity, nuance, and especially humility were in short supply. Here are a few excerpts (sorry, no links; quotes from transcript of hearing in House on December 8, 1998, which can be found online or in Nexis):

I strongly believe that the weight of the evidence runs counter to impeachment. What each of you on the committee and your fellow members of the House must decide, each for him or herself, is whether the actual facts alleged against the president, the actual facts and not the sonorous formal charges, truly rise to the level of impeachable offenses.

If you believe they do rise to that level, you will vote for impeachment and take your risks at going down in history with the zealots and the fanatics.

If you understand that the charges do not rise to the level of impeachment, or if you are at all unsure, and yet you vote in favor of impeachment anyway for some other reason, history will track you down and condemn you for your cravenness.

Rep. William Jenkins (R, Tenn) observed that Wilentz had offered only opinions, that he "did not refute one fact about the allegations of perjury that are before us, about the allegations of obstruction of justice that are before us, or about the allegation of the abuse of power," and he added: "we need to remember . . . that what we're dealing in and what you came armed with is a bunch of opinions. And like they say back in Tennessee, everybody's got those."

Wilentz replied: "There's a difference between opinion and scholarship. Anybody can have an opinion. What I reported here has to do with scholarship."

This was too much for even the New York Times, which commented editorially on the "gratuitously patronizing presentation by Sean Wilentz, a Princeton historian." (NYT editorial, 12/9/1998)

Just the sort of nuanced, complexity-appreciating, humility-exuding historian to turn to for a critique of Justice Scalia in the New York Times, right?

More on "Law Office History" v. Academic History - At first I was going to post this below, as a Post-PostScript to my Bellesiles entry, but if it's worth entering it's worth entering on its own. So: For another historian patting his profession on the back for its devotion to "admitting ambiguity or uncertainty in our findings" and "the sense of nuance historians bring to their work -- in marked contrast to lawyers and even "legal scholars" who are "are used to adversarial argument, and cavalierly happy to deploy whatever materials serve the cause they favor without the historian's due regard for the limits and ambiguities of the evidence" -- see "Dr. Clio Goes to Washington," by Prof. Jack Rakove in the same issue of Common-Place that contains Prof. Bellesiles' article discussed immediately below.

In this article Prof. Rakove recounts and offers reflections upon his Congressional testimony and other public activity opposing President Clinton's impeachment. In defending his political and even admittedly partisan engagement he is at pains to argue that nothing in his testimony, etc., was at odds with his prior scholarly writings. This is no doubt true, especially inasmuch as the preface to his Pulitzer Prize-winning study of Original Meanings: Politics and Ideas in the Making of the Constitution (Vintage paperback, 1997) contains the following refreshing admission. After noting "two powerful criticisms" of originalism, that it is undemocratic because it subordinates the present to the past and that it is all but impossible to reconstruct intentions and understanding from the evidence left to us, he adds: "On the other hand, I happen to like originalist arguments when the weight of the evidence seems to support the constitutional outcomes I favor." (p. xv)

Finally, it may be worth noting that Prof. Rakove candidly admits here that "Hillary Rodham Clinton (coincidentally the mother of one of my better-known students...) was close to the mark in her famous remark blaming a 'vast right-wing conspiracy' for the impeachment," and he concludes the article by in effect blaming that conspiracy for the 9/11 attack:

While politics dictated that the national government be paralyzed for a year with partisan foolishness, our enemies elsewhere were making other plans for us -- plans that we perhaps could have been better prepared to confront. But of course Monica was more important.

Perhaps recalling the episode when Ms. Lewinsky, according to her testimony, was performing oral (non-)sex on the president while he spoke on the phone with Rep. Sonny Callahan (R, Ala.) about additional troop deployments, I suppose a member of that conspiracy could reply, "More important to whom?"

Friday, July 12, 2002

Bellesiles Fires More Blanks - Embattled anti-gun scholar Michael Bellesiles has written a long, rambling, unintentionally ironic essay, "Constitutional Meanings," about what history and historians have to say about the meaning of the Second Amendment. Not much, it would appear.

In the first two thirds or so of the essay Bellesiles contrasts objective, disinterested academic scholarship with tendentious "law office history," history that avoids context and that is written "in the style of a legal brief, in which only supportive evidence is considered and all complications eschewed." According to Bellesiles, "[h]istorians doubt any case for which all the evidence falls consistently on one side and work on the assumption that the past is pitted with ambiguities and paradoxes."

This part of the essay asserts that good history has little to say to the present because the past was a different world with different concerns from our own, that it is dead and gone, and that the historian's job is to explicate its context and unravel its complexity. The search for any "original intent," he argues, is a fool's errand, and only "the most ideologically inclined reader" could continue to pursue it.

In the concluding third of the essay, however, Bellesiles has no hesitation about passing judgement on the past -- "Clearly, aspects of the Constitution have outlasted their usefulness -- the electoral college springs to mind" -- or hearing clear messages -- even messages about original intent -- that the past sends to us. Thus, he asserts that

The continuing efforts of states to control access to and use of guns once the Second Amendment was part of the Constitution seemingly indicates a lack of concern for an individual "right" to own a gun. The absence of notable opposition to such state action, even when it extended to disarming a portion of the population, reveals popular attitudes that failed to see gun ownership as a protected individual right.... In brief, those responsible for its ratification never saw the Second Amendment as a hindrance to either government regulation of firearms or to efforts by the federal government to arm specific groups of citizens.

There is no discussion here of those "continuing efforts" or "state action."

Just as the past seems to be pretty clear after all, there similarly is precious little ambiguity or complexity in Bellesiles' present. Thus, when the Senate voted 99-1 to condemn new U.S. history standards several years ago,

they were in keeping with a tradition of anti-intellectualism that Richard Hofstadter has traced back to the 1790s. It is of course ironic that a country founded by a generation obsessed with ideas should prove so uncongenial to them; but, as Tocqueville indicated, that is the nature of American conceptions of equality--the history buff equals the historian.

Those who disagree with pedigreed history, in short, don't have different ideas; they are "uncongenial" to ideas altogether.

Some inkling of Bellesiles' conception of sound, responsible opinion, as well as irresponsible opinion, can be seen in his glowing reference to "David Brock's recent and highly significant book, Blinded by the Right." Brock "makes evident," says Bellesiles, that "the far right (and it is inaccurate to call them "conservatives") is especially good at destroying the careers of those they perceive as threats, even if they have to make things up."

Making things up does indeed seem to be a problem.

PostScript [7/13/2002 9:45AM] - In the interests of full disclosure I should add that I once practiced "law office history," and I think it has an undeservedly bad reputation. Or more precisely, what is properly objected to in law office history -- tendentious inclusion and exclusion of evidence to reach a predetermined conclusion -- isn't limited to law firms, and in fact may be less prevalent there than in some of the more politicized fields of academic history. Lawyers have a powerful incentive at least to find and weigh all the relevant evidence, especially the evidence that works against them. Of course, some may minimize or hide negative evidence in their presentations, but this unfortunate practice is not limited to law offices. The proper distinction, in short, is not between academic and law office history; it is between good and bad history.

Thursday, July 11, 2002

More Irk: Democrats and "Diversity" - "Townsend's Choice Irks Some Blacks," reports the Washington Post, referring to Kathleen Kennedy Townsend's choice of running mate in her campaign for governor of Maryland. Townsend chose Charles R. Larson, a white retired admiral who was a registered Republican until last June.

This year Rep. Robert Ehrlich, the Republican candidate for governor, picked Michael Steele, the only black chairman of a state Republican party in the country, as his running mate. Republicans hope and Democrats fear that these two running mate choices will dampen the enthusiasm for Democrats among African Americans.

When Republican candidates abandon their core voters and reach out to the center they are usually praised as moderates in the mainstream media. Here, however the general tone and content of the Post article suggested that Townsend made a big mistake in not appeasing the Democrats' black base.

Instead of appealing to that large and loyal constitutency, Townsend turned to Larson.... The choice was praised by most Democratic leaders, who saw it as a wise appeal to independent voters, where Townsend's support is weak. But many black Democrats viewed it as a slap in the face.

"There's a lot of grumbling and disappointment about the selection, none of it personal to Mr. Larson, particularly," said Albert Wynn, a black Congressman from Prince Georges County who refused to appear at a photo op for Townsend and Larson or at the opening of their headquarters in his district. But, Wynn noted, "there are a lot of people who are disappointed that there's not more diversity on the statewide ticket."

When and where I grew up George Wallace always talked about the "bloc vote." Everyone knew "bloc" was simply a code word for "black." Now "diversity" has come to be a code word that means pretty much the same thing.

The Production of Minorities - One thing the United States produces with great and undiminished efficiency is minorities. The unparalleled engine of American democracy takes the raw material of peoples as diverse as Cubans and Brazilians, Mexicans and Italians or Germans from Argentina, and turns them almost overnight into that American invention, Hispanics. These people did not generally think of themselves as Hispanic when they were in their native or, for later generations, ancestral countries, but they become Hispanic here, just as Japanese and Chinese and Koreans and Filipinos et. al. become Asian on these shores.

A nice example of this was in the Washington Post yesterday, in an article about the wooing of new Hispanic voters in Las Vegas. According to the Post, Democratic strategists call these newly minted voters "'opportunity Hispanics' because they are not yet partial to government programs or one of the major parties."

In a revealing vignette, one of these new voters who had just registered as a Democrat told the visiting Democratic candidate for Congress that "Democrats have been known to help out a lot of minorities, which I am a part of." The Hispanic candidate is Cuban, presumably a small minority in the Hispanic community of Las Vegas.

It would appear that the more successful Democrats are in making members of various ethnic groups identify themselves as minorities, the more successful they will be. It's less clear that what's good for the Democrats on this score is good for the country.

Curious about what success "on" diversity might mean, and especially because Jessie attended the Fairfax Gifted and Talented program (giving her mother and me, not just Jessie, quite a bit of experience with it), I read this article with a great deal of interest. I suggest that you read it as well, because I might be overreacting. Keep that caveat in mind as I tell you why I found it troubling, and in some instances virtually incoherent.

The article reports that, as a result of revisions in the tests and other admission requirements, enrollment in the selective program went up 37% (519 students) for next fall. Nevertheless, "educators are adamant that the program is as selective as ever."

I spent my first year of graduate school at Yale immediately before it went coed, and I am reminded now of comment on the Yale campus then. It was said (and a measure of Yale in those days is that one could never be sure if this was in jest) that Yale would LOVE to go coed, but the administration had been stumped by a seemingly intractable problem: they were determined to come up with a plan for going coed that would a) not increase the size of the student body or b) reduce the number of men who would have been admitted in the absence of co-education.

Dramatically increasing the size of the Fairfax County GT program in one year without reducing the selectivity of the program would seem to be just as difficult. How exactly was it done? According to the Post,

Superintendent Daniel A. Domenech and other school administrators changed the process in multiple ways to identify more qualified minority students and non-English speakers....

This year, students were given an ability test that focused on problem-solving, patterns and relationships in hopes of identifying gifted children who do not speak English and poorer students who don't traditionally score as high on an IQ test.

"Non-English speakers"? In a selective gifted program? Perhaps the Post meant to say students from families where English was not spoken at home? Perhaps, but the phrase "non-English speakers" was used more than once.

In addition to the new test given to identify gifted students missed by the traditional IQ test, "Administrators allowed students to be considered if they were referred by their parents, even if their test scores didn't qualify them."

So, in addition to supplementing the IQ test with a new test given to identify "gifted children who do not speak English and poorer students who don't traditionally score as high on an IQ test," students nominated by their parents could also be considered "even if their test scores didn't qualify them."

Despite these changes, which led to just under 40% more students being accepted (from 1394 students in 2001 to 1913 in 2002), the educators are "adamant" that the program is as selective as ever.

About half the semifinalists were offered admission -- the same as last year, [Nancy] Sprague [assistant superintendent for instruction] said. The IQ test cutoff score remained the same to ensure that standards would not be lowered, and a similarly high cutoff score was established for the problem-solving test.

I don't understand. If the "IQ test cutoff score" really was a cutoff score, and if it remained the same as last year, what was the point of the additional test to identify students who didn't do well on IQ tests? Of the recommendations from parents of poorer students who don't test well? In short, on the evidence presented the claim that the GT program remains as selective as ever simply makes no sense.

One result of the new standards is that the number of minorities increased dramatically: 41% more blacks, 168% more Hispanics, 53% more Asians, 31% more "Others," resulting in an overall increase in minorities from 32% in 2001 to 36% in 2002. Yet Nancy Sprague, the assistant superintendent, is quoted as saying "We're still not there yet" in terms of meeting the district's minority goals.

Where is "there," and how will the district know when it has arrived?

Jessie's Take - Well, I suppose Rosenberg Elder has made most of the relevant points about the article itself. I might suggest that the selection committee believes that it is unearthing hordes of talented (or "differently talented"?) children who wouldn't have been uncovered using those discriminatory IQ tests. (No pattern-based test for mental retardation, though!) However, even if somehow the students are just as good, the program cannot be, since the article clearly states that there are too many students for the gifted program to handle.

Even while I was in it, the program was subject to degrading outside influence. In fifth grade, my school principal wanted to combine the gifted and traditional science classes. Science, of all things! Combining any of the classes would defeat the purpose, but science, with its emphasis on intelligent inquiry and curiosity (both of which the gifted students had in abundance), would be an especially bad class to compromise on. Since there are only four academic subjects -- science, social studies, math, and "language arts" -- ending gifted science would have eliminated 25% of the gifted program in our school. Fortunately, after much parental involvement, proving that the change would violate the county's own guidelines outlining its obligation to provide a gifted program, the science classes remained separate.

Some of the problems were simply due to bad management, and tenure (or whatever the equivalent is for middle school teachers). I think tenure is an incredibly bad idea, by the way, but I’ll talk about that in another post. Anyway, in sixth grade, one of my teachers was originally an eighth grade teacher, but had occasioned so many complaints from parents that she was moved down to seventh grade, and then the next year to sixth grade. They call that solving a problem? I hate to bring forth such a horrible accusation, but is it possible they didn't fire her because she was black? Maybe she just had tenure, but one of the most insidious effects of racial preferences/double standards is that they make it difficult to avoid wondering whether race played a role in hiring/firing decisions. Last time I heard, she was teaching typing at another middle school in the district. On the first day of school she told a friend and me, separately, something to the effect of, "You ask too many questions because you're an only child." Because of that, and other reasons (namely, even I knew more pre-algebra than she did, and I wasn't the only one), I changed schools early that year, to another school that also housed a gifted center.

Although when I attended we weren't too thrilled with the Fairfax County gifted program, looking back it was definitely, overall, my best pre-college scholastic experience. And that's saying a lot; I've been to nine schools (not counting colleges) in my quest for a good education, twice having to bail out and change schools in the middle of the year. (The second time was when I was in Japan, leaving the dreadfully un-academic, opposed to ability tracking, overpriced American School in Japan. Original name, too.) More details on the terrible state of America's school systems later.

But, really, Fairfax County's schools were the best I've seen. If anyone knows of another school system in which third graders build a life-size rainforest out of paper in their classroom (thirty foot snakes and all), I'd be very pleased to know about it. I suppose they're probably not allowed to do that anymore, although I know it continued for a few years after my class (we were the first), even after they moved into trailers.

Even in places where they supposedly have gifted programs, I've not seen or heard of any even nearly as good as Fairfax County's was. In Albemarle County (rural-ish area near Charlottesville, VA, our current home base and where I went to school three years ago), nearly half the students qualify for the gifted program -- "everyone is gifted here!" -- but all for naught. There are no separate classes for gifted students, and at least in my 8th grade year there were virtually no gifted activities at all.

So, think of this as an obituary for the Fairfax County Gifted and Talented program: accolades for its achievements, and the realities of its decline. Though I hope the program won't continue its decline, if this PC nonsense and lack of attention to hard facts of reality persists, I very much fear that this is the end.

Update - Joanne Jacobs, on her site and in the comments for this post, responds to our discussion of the Fairfax Gifted and Talented program with a description of the Palo Alto program which makes Fairfax County look like heaven. (Note: Permalink there isn't working, just scroll down)

History Lesson I - Sean Wilentz, the peripatetic Princeton historian who spends a great deal of time embroidering and publicizing historical pedigrees for his favorite liberal causes (here the Founding Fathers would support abortion rights, there they would oppose Clinton's impeachment, etc.), recently published a sclerotic attack on Justice Scalia in the New York Times. Juan Non-Volokh effectively demolished it on The Volokh Conspiracy here and here, and little needs to be added here.

But perhaps one additional comment is in order. The necessity to oppose Clinton's impeachment seems to have shown Wilentz the utility (at least occasionally) of an originalist interpretive pose, and thus he lambasts Scalia for attempting to substitute his own views of the proper relationship between religion and government for the founders' -- "Justice Scalia seeks to abandon the intent of the Constitution's framers and impose views about government and divinity that no previous justice, no matter how conservative, has ever embraced."

According to Wilentz,

Justice Scalia's remarks show bitterness against democracy, strong dislike for the Constitution's approach to religion and eager advocacy for the submission of the individual to the state. It is a chilling mixture for an American.

I will leave to readers and others more qualified than I the determination of whether Wilentz's interpretation of Scalia is fair, or even accurate (in my view, it is neither). Scalia has made it clear, in the very speech that launches Wilentz upon his diatribe, that he regards the death penalty as moral (contrary to the teachings of the church that he is alleged to follow slavishly); that he would uphold a hypothetical state law providing for freely available abortions, which he opposes; and that a judge called upon to do something immoral should resign and even perhaps lead a revolution. What interests me here is what Wilentz's advice would be to a judge who was called upon to enforce a law that he or she regarded as clearly both Constitutional and immoral.

This is not a new dilemma. Judges who thought slavery immoral were in that position before the passage of the 13th Amendment. (Robert Cover wrote a terrific book about that problem over 25 years ago: Justice Accused: Antislavery and the Judicial Process, Yale University Press, 1975). There can be no doubt that the original Constitution protected slavery. What would Wilentz have had those antislavery judges do? The implication of his attack on Scalia is that he would regard any judge who deigned to place his own morality above "democracy" and the Constitution as a fearful despot.

Update - [7/11/2002 8:00PM] I said above that "I will leave to readers and others more qualified than I the determination of whether Wilentz's interpretation of Scalia is fair, or even accurate (in my view, it is neither)." That person is Peter Berkowitz, and his devastating rebuttal to Wilentz's "scurrilous" attack on Scalia should be read. It can be found on National Review Online.

Tuesday, July 09, 2002

Blogging at its Best: Thoughtful Criticism - Garrett Moritz has a very thoughtful critique of my recent post on the "underrepresentation" of men in college and what implications that might have for the notion of disparate impact.

I had argued that the "disparity" between men and women in college admissions is even greater than in college sports and that accepting the logic of using Title IX to force colleges to cut back on men's teams in order to promote gender equity should, logically, require colleges to take steps, such as admissions preferences for men, to equalize admissions as well. Some public colleges, I pointed out, have in fact employed such preferences. (Because, no doubt, of a lack of clarity on my part, Moritz seems to think I actually favor such preferences. I don't. I was attempting a "gotcha." I think I got it; Moritz doesn't. You decide.)

Regarding college athletics specifically, Moritz says the neutrality principle I prefer does not apply because "[d]ifferences in funding and sports programs don't simply materialize through the application of neutral criteria; they are the result of specific choices by school sports administrators." This is true, and a very good point, although I think it is mistaken to the degree that it implies that men and women have equivalent interests in sports and that the disparities in participation can be explained primarily by the biased decisions of administrators. This view reminds me of an argument I heard quite often from friends (or former friends) during my work with the law firm defending Sears Roebuck in the sex discrimination suit brought against it by the EEOC. It was no defense of Sears, they would claim, that men are more interested in and available for installing heating and air conditioning systems, home appliances, etc. If Sears only chose to sell different products, my friends argued, it could get more women employees. Well, yes.

In a couple of very polite and provocative emails back and forth Moritz also took issue with my tweaking lefty/liberals for their inconsistency in opposing any state action that benefits religion -- no matter how secular the intent and how general the benefit, such as vouchers -- even though they emphatically endorse state action that benefits one race as opposed to another. In other words, liberals argue that the obligation to enforce "equal protection of the laws" allows the state to provide racial preferences but that the prohibition against any laws "respecting an establishment of religion" does not allow the inclusion of churches in general benefits provided for secular purposes to non-religious organizations. Roger Baldwin, founder of the ACLU, used to criticize those who believed in "civil liberties for our side only," and my point was that the left seemed to believe that disparate impact was a one-way street that bars policies they dislike while allowing those they like. They apply an effects test to vouchers, and would bar them. They apply an effects test to the SAT, and many liberals favor eliminating it. But they apply an intent test to the pledge and would eliminate it even if the offending phrase doesn't have much of an "Establishing" effect, and they certainly have no complaint about the effects of state preferences that disproportionately benefit minorities.

Moritz replies that my attacks on disparate impact amount to "tilting at windmills" because disparate impact is a corpse, a dead relic of the 60s that has been interred by the Rehnquist court. (He, of course, says more than this, and says it better, so I encourage you to visit his site.)

As a matter of current law he is correct. But current law, as everyone knows (and some hope), can change. Moritz acknowledges that a disparate impact approach to civil rights warms the cockles of lefty hearts (my words, not his), and one would need to be neither a Polyanna nor a paranoid (depending on your politics) to see how even one new justice could change the direction of the Court on these matters. The target of my jousting was thus not the law as it is but the law as lefties (including Moritz, he says) would like it to be.

Finally, in another post, Moritz takes me to task for a suggestion I tendered, in discussing the pledge and voucher cases, that "[p]erhaps we should come up with a new standard that would require both an impermissible intent AND sufficiently extensive effects in order to find [an] Establishment violation." Such an approach, I suggested, would be one way to reconcile the conclusion that neither school vouchers nor the phrase "under God" in the pledge violate the Establishment clause. In the voucher case there was no intent to promote religion in a program that was adopted for secular purposes, but there was arguably an effect of promoting religion since the Cleveland vouchers were used overwhelmingly in religious schools. In the pledge case, by contrast, Congress clearly showed an intent to promote religion by inserting the "under God" phrase in the pledge, but arguably that did not have much of an effect of promoting religion.

Moritz views my suggestion as unprincipled result shopping. He makes a good point, makes it characteristically well, and in fact may even be right. I have argued, in the posts that Moritz cites and elsewhere, that by looking only to effects disparate impact distorts the meaning of discrimination by draining it of any discriminatory intent. I hope he is right that that approach is legally dead, and I would like it to stay dead. I'm not altogether convinced, however, that my belief that a finding of intent is necessary to a finding of discrimination or Establishment violation necessarily means that one must not consider effects at all. There is something to "no harm, no foul" common sense in law, as elsewhere. Nevertheless, I think the principle of neutrality, applied in both the racial (color-blindness) and religious (religion-blindness) arenas, is of paramount importance, and I would happily sacrifice the "under God" phrase in the pledge if that is necessary to maintain a principled consistency.

Finally, I would like to say that Moritz's points are very thoughtful and that he has pursued them courteously, both on his blog and in private emails. I appreciate that, and am sad only because I have found thoughtful, courteous criticism so rare. I am pleased to have provoked it.